In Trade Restriction by Clyde Mooney

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Victoria will tomorrow join the rest of Australia, plunged into the toxic quagmire and noxious penalties arising from the ban on smoking in outdoor dining areas.

Although it is a decade since the bans on indoor smoking came almost universally into Australian hospitality venues, Victoria has held out the longest in extending this move to elements of the outdoors.

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But while pubs around the country have toiled with the issues of split-designation areas and staggered dining and smoking times, there are thought to be some unique challenges ahead for the state, particularly amongst Melbourne’s laneway precincts and abundance of rooftop spaces.

From 1 August 2017, the Tobacco Amendment Act 2016 (VIC), amending the Tobacco Act 1987, mandates that smoking is not allowed in outdoor areas where food beyond snacks is consumed.

Furthermore, smoking is not permitted within four metres of a dining area without a 2.1-metre high wall between, which could have serious implications for venues offering foodservice in clustered districts and near pedestrian walkways.

Darren Marx

“This rule stands whether the outdoor dining area is part of the same venue or a neighbouring venue, and whether you serve alcoholic or non-alcoholic beverages,” says Darren Marx, partner and hospitality specialist at Rigby Cooke Lawyers.

The regulations apply to all places of foodservice, whether temporary or permanent, including fairs, festivals, school fetes, sporting events and even markets with food stalls.

What’s more, it includes tobacco, shisha tobacco and even e-cigarettes.

Although the new regulations were announced in mid-2015, finer points of the interpretation and enforcement of the regulations will by necessity be established over time following introduction, and Marx suggests that many affected venues may be caught unaware of their obligations.

“Some businesses or event organisers might not realise the full extent of the new legislation, which specifies rules for both outdoor dining areas and outdoor drinking areas, including for neighbouring venues.

“There is some uncertainty around the lengths venue operators will be expected to go to, particularly when dealing with third parties, in order to fully comply with the new laws and avoid the hefty fines, however there are various conditions under which some venues would not be held liable – such as the ability to prove they were not aware and could not reasonably be expected to have been aware of a breach.”

The bans carry a maximum court penalty of $1,585.70 (10 penalty units) for individuals and $7,928.50 (50 penalty units) for venues.

Venues are legally responsible for making sure patrons understand the new law with the display of ‘no smoking’ signs, and Marx suggests all dining and drinking venues should become familiar with the rules and possible defences applicable to their specific situation.